Editor's Note: This Essay is Part II of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here. Parts III and IV of the exchange are forthcoming September 2012. For questions or comments about the exchange, or to enquire about submitting a contribution, please contact the Senior Colloquy Editor.
I. Four Disputes and One Agreement
When the Americans set up their new, independent government, they brought an original attitude towards offices and gifts which separated them from Europe. Gifts, which were part of European diplomatic culture, were recast as corrupt influences. And offices were viewed with fear of their corrupting power, given the examples of Europe. The "corner-stone" of the new Constitution, according to one delegate, was the provision designed to prevent lucrative offices from being sold and traded for political power.[1] This Essay, a response to Seth Barrett Tillman's challenge to my previous writing on founding era anxiety about corruption, is a partial exploration of the scope of the clauses relating to gifts and office holding.
Tillman[2] and I disagree about four significant things, but we agree about one even more significant thing. First, we disagree about how to interpret the changes in the Foreign Emoluments Clause from the Articles of Confederation to the Constitution. Second, we disagree about the precision with which the words "office under/of the United States" were used in the Constitution. Third, we disagree about how important these disputes are for contemporary constitutional doctrine. Fourth, we disagree about the degree of obsession with corruption exhibited by the men who wrote the original American Constitution. The bulk of this response will be to explain some of my thoughts on these disagreements.
